Interim Decision # 1310 

MATTER OR LOUIE 

In DEPORTATION Proceedings 

A-13681449 

Decided by Board December 1R,196.9 

Service in the U.S. Navy for 1 year, 9 months, and 20 days does not satisfy the 

minimum period of 24 months in active-duty status required by section 244 (b), 

Immigration and Nationality Act, as amended, notwithstanding the same period 

of service in considered by the Department of Navy to have satisfied the 

requirements of 2 years of service on active obligated duty for which inducted. 

Crum= : 

Order: Act "of 1952—Section 241(a) ( 2) ER U.S.C. 1251(a) (2)1—Entered 

without inspection. 

The case is before us by certification. The special inquiry officer 

found respondent deportable upon the charge stated above and denied 

his application for suspension of deportation. The issue is whether 

the respondent is eligible for suspension of deportation. 

Section 244(a) (1) of the Immigration and Nationality Act under 

which application is made for suspension of deportation has a requirement that the applicant have been physically present for a continuous 

period of seven years in the United States prior to becoming deportable; however an exception to this requirement is made for one who 

"has served for a minimum period of twenty-four months in active 

duty status of the Armed Forces of the United States * * (section 

244(b) of the Immigration and Nationality Act, 8 U.S.C. 1254(b) 

(Supp. IV)) )." The issue is whether the respondent who actually 

spent one year nine months and twenty days on active' duty with the 

Navy is within the exception. 

Respondent a 82-year-old married male, a native and national of 

China, came to the United States in 1951 to join his father who has 

been a resident of the United States since 1918. Respondent gained 

admission upon a false claim to United States citizenship. He made 

short visits to Hong Hong in 1960 and 1962. 

Respondent who was inducted into the United States Navy on November 17, 1955, for two years of active service was transferred to the 

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Reserves on September 6, 1957 after having served one year nine 

months and twenty days. He was obligated to serve in the Reserves 

until November 16, 1961 but failed to perform any Reserve obligation. 

The official Armed Forces Report of Transfer received by respondent from the Navy reveals that he was inducted for two years of service 

and that he served one year nine months and twenty days. A letter 

dated December 20, 1962, from the Department of the Navy, Bure,au 

of Naval Personnel, at Washington, D.C., reveals that under certain 

circumstances, enlisted personnel may be separated three months or 

less prior to the normal date of expiration of active obligated service, 

provided such early separation is in the best interest of the government 

and that such service is considered to have satisfied the requirement 

that the person serve two years on active obligated duty. The respondent is, therefore, considered by the Navy to have fulfilled his 

obligation to serve on active duty for a period of twenty-four months 

toward his Naval Reserve obligations (Ex. 5). 

The special inquiry officer stated that despite the Navy's view of the 

respondent's service, the fact was respondent had not served the full 

twenty-four months required by the statute; he therefore did not come 

within the exception created by the statute. Counsel believes that the 

decision of the Department of the Navy that respondent has served 

twenty-four months on active duty should be controlling as to the 

length of the respondent's service. He points out that the immigration. law expressly provides in some instances that the decision of 

branches of the Department of Defense are conclusive as to the existence of service. He points out that the congressional history of the 

legislation reveals that it was desired to benefit aliens who had served 

honorably for a stated period of time in the Armed Forces of the 

United States. He believes that in fixing the twenty -four month 

period of active duty, Congress was referring to a minimum period 

of service, and he points out that the respondent has satisfactorily 

completed his minimum period of service. In the event that the decision is adverse to the respondent, counsel requests that the decision 

be certified to the Attorney General for a final administrative order. 

We believe the special inquiry officer has ruled properly. The law 

makes eligibility for relief dependent on proof that an alien has served 

at least 24 months in an active duty status. Respondent has not 

served this minimum period. The law makes no exception; it does 

not provide that acceptance of a lesser period of service by the Department of Defense shall constitute a waiver of the law's requirement. 

It is clear, therefore, that respondent who has served less than twentyfour months has failed to establish his eligibility for relief. While 

it may well be that Congress did not envision the situation before us, 

and would have made provision to grant relief if it had, the fact re399 
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mains that there is no authority to accept less than proof of at least 

twenty-four months of active duty service. 

There is no procedure for the certification of a case to the Attorney 

General at the request of an attorney (8 CFR 3.1(h)). We do not 

believe the case merits the attention of the Attorney General. 

ORDER: It is ordered that no change be made in the order of the 

special inquiry officer. 

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